DuPree v. Alma School District No. 30/Concurrence Hickman
DARRELL HICKMAN, Justice, concurring. I wholeheartedly agree with the majority. I concur only to add some thoughts that ought to be expressed. This is a case which we could have easily decided the other way with good legal justification. But there are equally good legal reasons for our decision. In addition the subject matter almost compels us to act because public education is one of the most important services provided by state government. Education is too important a right or privilege for any authority in state government to ignore when it is in dangerous straits and the legal means exist to address the problem. We have before us a problem that the other branches of government have either been unable or unwilling to resolve and part of the answer lies easily within the realm of our authority. Their failure to act is understandable in view of the complexity of the problem and the pressure that comes to bear on the largest expenditure of state funds.
A disparity exists in the dispensation of state funds to local school districts that cannot be justified by any solid constitutional principle. Equality is always the rule in constitutional law, not the exception, and it is a principle repeatedly contained in our Constitution, specifically in the equal protection clause, ARK. CONST, art. 2 § 3; the privileges and immunities clause, ARK. CONST. art. 2 § 18; and even in ARK. CONST. amend. XIV, which prohibits local and special legislation.
Equality is, of course, mostly an ideal or goal, and hardly ever a reality in government. Reasons are always given for not requiring equality but they are usually no more than excuses, and I do not hesitate to point out that if the Arkansas legislature approaches its new task with anything less than the goal of equality in dispensing state funds, it risks repeating the same mistakes that brought about this situation. To be specific, I cannot justify, on this record, any formula of distribution except on a per pupil basis. If there are not enough funds, using such a formula, to insure each student a decent educational opportunity, then the answer lies elsewhere and not in the unequal distribution of funds.
The large and small districts alike argue that it takes more money to provide an education because of their size. I am very doubtful that is the case for larger districts, and the small districts may find the answer to their problem lies in consolidation or merger. Small districts may have to concede that they cannot continue to provide a suitable education for their students under such a formula. The large districts have three alternatives: Either change the composition of their district, seek extra funds locally, or more aid for all schools. I do not say any formula, except one based on a per pupil basis, would fail legal examiation; but it would certainly have a more difficult time surviving legal scrutiny. The evidence to justify any distribution, other than a per pupil basis, should be both clear and convincing.
There is no doubt in my judgment that the formula must take into consideration the value of local property available for taxes. I think the majority has said this, but it needs to be made plain, that the disparity that exists, exists partly because of the difference in local taxes that are available. To be specific, a school district that is fortunate enough to have a nuclear energy plant in its district has more tax dollars available than a rural school district that has no taxable local industry. But the children of each district should have the same educational opportunity. That means the wealthier district cannot receive the same state aid the poor district does. A proper formula will consider this disparity. While the state-wide assessment we ordered in Arkansas Public Service Commission v. Pulaski County Board of Equalization, 266 Ark. 64, 582 S.W.2d 942 (1979), will not cure all the inequities that exist, it will certainly provide a basis for addressing the problem. Furthermore, those counties that refuse in the future to properly and lawfully assess their taxable property should be legally accountable to the school districts located in counties that do conscientiously assess property, because it is common knowledge some counties simply refuse or neglect to properly assess property.
We have only the question of the state money before us, but the problem has many facets and the peripheral and collateral questions are staggering. They cannot be ignored by us or the legislature in addressing the question. Local school districts cannot assume their borders will or should remain static forever. Consolidation or merger, or even reducing the size of a district should not be unthinkable.
The legislature will have the same difficulties in setting a new formula as it has had in dealing with the one rejected. Some school districts will want special consideration, whether they are small, medium, large, from an urban or rural area. If the funds are distributed equally, some districts may lose funds. This immediately raises the question of what kind of education should be provided. The appellants point to The Quality Education Act of 1969 (Ark. Stat. Ann. §§ 80-4601 — 4615) which is supposed to insure that the children of Arkansas receive a quality education. The Act is, of course, meaningless so far as quality is concerned. Any school district that can only comply with that Act is probably not offering its students a decent education opportunity as required by ARK. CONST. art. 14, § 1. The Act was probably passed so that small districts would not have to consolidate. In addition to the problems and questions to be resolved, if these were not enough, there looms in the shadows ARK. CONST. amend. 59 passed in 1980. It deprived school districis of valuably needed tax dollars by granting specific tax favors to certain property owners and freezing to an extent tax revenue. Its validity has never been challenged in court.
It is my respectful judgment that this court had no intention of intervening in a legislative or executive matter. Nor do we intend to supervise their work and if the General Assembly takes this opportunity to correct years of habit and starts afresh providing a truly equal formula for dispensing state aid, then there will be no need for this court to speak on this matter again. We are not a wealthy state but we have the means to provide to every student, both at the secondary and higher level, a decent opportunity for an education. But our assets cannot be squandered by political decisions or unnecessary compromise.